OpenJurist

962 F2d 7 Perkins v. United States of America

962 F.2d 7

Tommy G. PERKINS, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee.

No. 91-1190.

United States Court of Appeals,
Fourth Circuit.

Submitted: February 3, 1992
Decided: May 19, 1992

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Tommy G. Perkins, Appellant Pro Se.

Before NIEMEYER, Circuit Judge, and CHAPMAN and BUTZNER, Senior Circuit Judges.

PER CURIAM:

1

Tommy Perkins, a former officer in the United States Coast Guard, seeks review of a district court order dismissing pursuant to 28 U.S.C. § 1915(d) (1988) his wrongful discharge action against the government, on the ground that Perkins's action was barred by the three-year limitations period of N.C. Gen. Stat. § 1-52(5) (1983 & Supp. 1991). We find that the district court erred by applying the cited limitations provision.

2

Actions brought by United States servicemen* separated from the military to challenge their discharge status are governed by the sixyear limitations provision established by 28 U.S.C.s 2401(a) (1988 and West Supp. 1991). See Cornetta v. United States, 851 F.2d 1372 (Fed. Cir. 1988); Blassingame v. Secretary of the Navy. 811 F.2d 65 (2d Cir. 1987). Since the earliest that Perkins's discharge action could have arguably accrued was the date of his discharge in September 1986, see Blassingame, at 70, the applicable limitations period has not expired.

3

We note, however, that the record provides no indication regarding whether Perkins has properly exhausted his administrative remedies. See Guerra v. Scruggs, 942 F.2d 270, 276 (4th Cir. 1991); 10 U.S.C. §§ 1552(b), 1553(a) (1983 & Supp. 1991). Accordingly, the decision of the district court is vacated and the case is remanded for further proceedings consistent with this opinion, including consideration of whether Perkins has properly exhausted his administrative remedies. We dispense with oral argument because the facts and legal contentions are adequately presented before the Court and argument would not aid the decisional process.

VACATED AND REMANDED

*As a member of the Coast Guard, Perkins is considered a member of the United States armed forces. See 10 U.S.C.A.s 101(4) (1983 and Supp. 1991).